Conservative name / Progressive Perspective

It is being called a “compromise,” but that seems to be in name only. The “rebellion” by key Senate Republicans against Bush’s wishes for constitutional right to torture, hold prisoners without charges or access to courts, approve military tribunals and the use of “secret” and hearsay evidence, has essentially survived in tact.

The only compromise seems to be that it is being called one. It gives McCain, Warner, and Graham a nice political out, and casts a light of “reasonableness” for Bush. Beyond that it is a disaster – and it is likely to become law.

The “compromise” bills moved forward on September 22, 2006 are all titled the “Military Commissions Act of 2006”:

Notes: I am assuming that S. 3930 supersedes S. 3929 as Warner is signed onto the former but not the latter. If the links to any of the above legislative documents do not work, you can access them through Thomas – Library of Congress, and search on the bill number or title.

See “Summarization of pertinent aspects of S. 3930” at then end of this article for specifics.

The proposed legislation pretty much gives the White House what they wanted in terms of “interrogation” issues, legality of detainee status, abridging the Geneva Conventions, utilizing coerced testimony and secret evidence, and placing all of this outside the bounds of review by the Supreme Court (see Sec. 3 Subchapter IV below).

According to analysts, for example Adam Liptak in the NY Times:

“It would impose new legal standards that it forbids the courts to enforce.

It would guarantee terrorist masterminds charged with war crimes an array of procedural protections. But it would bar hundreds of minor figures and people who say they are innocent bystanders from access to the courts to challenge their potentially lifelong detentions.”

Caroline Fredrickson of the ACLU is quoted in a press release as stating:

“This is a compromise of America’s commitment to the rule of law. The proposal would make the core protections of Common Article 3 of the Geneva Conventions irrelevant and unenforceable. It deliberately provides a ‘get out of jail free card’ to the administration’s top torture officials, and backdates that card nine years. These are tactics expected of repressive regimes, not the American government.

“Also under the proposal, the president would have the authority to declare what is – and what is not – a grave breach of the War Crimes Act, making the president his own judge and jury. This provision would give him unilateral authority to declare certain torture and abuse legal and sound. In a telling move, during a call with reporters today, National Security Advisor Stephen Hadley would not even answer a question about whether waterboarding would be permitted under the agreement.

“The agreement would also violate time-honored American due process standards by permitting the use of evidence coerced through cruel and abusive treatment. We urge lawmakers to stand firm in their commitment to American values and reject this charade of a compromise.”

This proposed legislation, if allowed to move forward, does not make us safer. What it does do is to overrule the Supreme Court decisions which have gone against the Bush administration in regards to the rights of detainees, the legality of Military Tribunals (renamed “Military Commissions” under this legislation), and allowing the use of testimony gained through torture and evidence which no one is allowed to see. It also would give the President the right under U.S. law to determine what the Geneva Convention means, and the authority to ignore it if he (she) so wishes.

It is alarming that the ruling of the commissions is placed beyond the review of the Supreme Court, and that the fitness of Commission Judges is also beyond challenge. The only oversight that I see in this legislation is a once yearly report to the various armed services committee.

The proposed legislation is also retroactive (as far as I can tell) as it removes any starting date from consideration. Previous versions had specified August 1, 2005. In this regard, it protects the administration, CIA, contractors, and others, from investigation or prosecution for war crimes. As far as I can tell from the legislation and various analyses, it is a buffer both internationally and domestically.

Of further note, it is not constrained to “alien enemy combatants,” but expands to anyone who is suspected of aiding and abetting suspected “terrorists,” or enemy combatants.

With the capitulation of McCain, Warner, and Graham, it seems highly likely that this bill will breeze through despite any resistance from the Democrats. So it is a (huge) win for the administration, a win for the political aspirations of McCain, Warner and Graham, and a huge loss for the citizens of the United States, and the international laws to which we have been a party for almost 60 years.

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Summarization of pertinent aspects of S. 3930:
Sec. 3 Authorization for Military Tribunals
a) the President has the right to establish them for the trial of “alien unlawful combatants;”
b) this does not limit the President’s right to establish other military tribunals;
c) the tribunal has the authority to impose punishment – including death
d) the Secretary of Defense has the authority to carry out the penalties imposed by the tribunals.
e) the Secretary of Defense will give an annual report to the House and Senate armed services committee.

Military Commissions:
“(f) Geneva Conventions Not Establishing Source of Rights- No alien enemy unlawful combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights at his trial by military commission.”

Sec. 3 Subchapter IV – Sec. 950j. Finality of proceedings, findings, and sentences
(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of enactment of this chapter, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

(f)”GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.–No alien enemy unlawful combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights at his trial by military commission.

SEC. 5. AMENDMENTS TO OTHER LAWS.
(d) Review of Judgments of Military Commissions
(2) DETAINEE TREATMENT ACT OF 2005- Section 1005(e)(3) of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended–
(A) in subparagraph (A), by striking `pursuant to Military Commission Order No. 1. dated August 31, 2005 (or any successor military order)’ and inserting `by a military commission under chapter 47A of title 10, United States Code’;

SEC. 6. HABEAS CORPUS MATTERS.
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who–

`(A) is currently in United States custody; and
`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

SEC. 10. SEVERABILITY.
If any provision of this Act or amendment made by a provision of this Act, or the application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of such provisions and amendments to any other person or circumstance, shall not be affected thereby.

[…] From the Project for the Old American Century: It is being called a “compromise,” but that seems to be in name only. The “rebellion” by key Senate Republicans against Bush’s wishes for constitutional right to torture, hold prisoners without charges or access to courts, approve military tribunals and the use of “secret” and hearsay evidence, has essentially survived intact. […]